Court of Appeal finds Home Office unlawfully detained child refugee

The case of Home Office v VS [2015] EWCA Civ 1142 discloses continued concerns about Home Office treatment of refugee children and sets clear guidelines on limits of power to detain children. The child was represented in the Court of Appeal by Stephanie Harrison QC and Shu Shin Luh of Garden Court Chambers, instructed by Jessica Whitehead at Coram Children’s Legal Centre.

In a judgment handed down today, the Court of Appeal dismissed an appeal from the Home Office and upheld a High Court ruling that the Home Office acted unlawfully by detaining a child refugee from Iran. The Home Office wrongly treated the child, known as VS, as an adult and detained him for 21 days with the view to removing him from the UK to Italy for his asylum claim to be dealt with there. The Home Office does not have lawful power to remove a child refugee from the UK to another member-state of the EU under the Dublin II Regulations.

The judgment provided important clarification around the proper construction of the Home Office’s policy on detaining children whose age may be disputed.

“I welcome the Court of Appeal’s judgment in favour of VS, which helps to clarify the Home Office’s obligations towards age disputed asylum seeking children. As a result, we should hope to see the Home Office making earlier referrals to local authority children’s services for support and more vulnerable refugee children being spared the harrowing experience of the adult immigration detention system.”

“Despite abandoning the use of detention of children in 2010, this case sadly shows that the practice continues. The Home Office is failing to properly apply its own policy when detaining those it wrongly disputes are children, which exposes them to detention with adults in wholly inappropriate conditions where their welfare cannot be properly safeguarded.”

Facts of the appeal

VS is a refugee from Iran who arrived in the UK on the morning of 2 July 2012 to seek asylum. He was a child, aged 16 years old, at the time when he entered the UK via Dover. Although there was no dispute that VS was a child when he arrived in the UK, the Home Office nevertheless detained him for several hours at its Dover Enforcement Unit before contacting Kent County Council Children’s services (‘the local authority’) to take VS into care later that evening.

Whilst in the care of the local authority, VS’s age was disputed. The local authority assessed him to be 2 years older than his actual age and found him to be an adult, aged 18. The Home Office accepted the local authority decision without requesting any reasons or assessment to support that conclusion, contrary to its own policies, and then detained VS as an adult at Dover Immigration Removal Centre. The Home Office did so with the intention of removing VS from the UK to Italy, which he had passed through on his way to the UK. It is the Home Office’s policy not to detain children save for in very exceptional circumstances. There were none in this case.

Under the Dublin II Regulations (Council Regulation (EC) No. 343/2003), the Home Office only has a power to seek to remove adult asylum-seekers who have been through other EU member-states.

The Home Office does not have the same power to do so if the asylum-seeker is a child and is obliged to examine the child’s asylum claim in the UK.

At all times whilst detained, VS repeatedly informed the Home Office that he was a child, not an adult. He produced documents to support his actual age. His solicitors produced translations of the documents from Iranian to English and requested these be accepted as evidence of his actual age. The Home Office declined to accept any of the further evidence and maintained VS’s detention until judicial review proceedings were issued. By an order of the High Court, the Home Office was prevented from removing VS from the UK until the determination of the age dispute, given the real risks of VS being wrongly removed from the UK when there was no lawful power to do so. The High Court also ordered a hearing to review the lawfulness of VS’s detention in view of him stating he was a child.

It was only after this court order that the Home Office agreed to release VS from immigration detention back into the care of the local authority. The judicial review was subsequently settled following a lawful re-assessment of age after which both the local authority and the Home Office accepted that VS was in fact a child, as he had always said he was. VS was subsequently recognised as a refugee by the Home Office.

As the Home Office did not accept that it acted unlawfully in detaining VS on a mistaken belief that he was an adult, the High Court had to determine the legality of VS’s detention on 2 July 2012 and from 17 July 2012 until 10 August 2012.

In July 2014, a High Court Judge declared VS as being unlawfully detained. The High Court found that the Home Office acted unlawfully in breach of its own policy by treating VS as an adult and as a result the Home Office also acted unlawfully in detaining VS when it had no power to do so in respect of a child asylum seeker. The Home Office appealed this judgment to the Court of Appeal.

Findings of the Court of Appeal

The Court of Appeal, in dismissing the Home Office’s appeal, rejected the Home Office’s interpretation of its own policies on detaining children and found that its erroneous interpretation resulted in the unlawful detention of VS. The Court of Appeal held that:

(1) Where a refugee child arrives in the UK, the Home Office has a duty to make a referral for the child to the relevant children’s services department as soon as practicable. The Home Office is not entitled to detain the child for the sole purpose of questioning him over the basis of his/her asylum claim;

(2) Where there is a dispute over the child’s date of birth and there is a local authority age assessment, the Home Office is required to consider the assessment properly to satisfy itself that the conclusion is correct;

(3) The Home Office is required to obtain the reasons on which the conclusion (of age) was based;

(4) The Home Office is required to make reasonable inquiries in order to arrive at an informed decision on the issue of the child’s age.

The Home Office failed to do so in all aspects and unlawfully detained VS. A number of similar claims on behalf of detained children are due to be considered by the courts in light of today’s judgment from the Court of Appeal.

This post is reproduced, with slight modifications, from the Garden Court Chambers website. For full post and details for media queries see here.

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Colin Yeo
A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years.
I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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